A Challenge to ASEAN: Be at the Forefront of Human Rights Building in Southeast Asia Philwomen on ASEANs Position on the Adoption of the

AHRD
ASEAN must be at the forefront of human rights The world looks at ASEAN as it establishes the pillars of a regional human rights system that will be seen as the testament to the sincere intent and commitment of ASEAN and its Member States to upholding and realizing the human rights of peoples in the region. ASEAN has created ASEAN Intergovernmental Commission on Human Rights (AICHR) as the regions overarching human rights body and is poised to adopt the regions first human rights declaration. Before it is a perfect opportunity to show a committed, united and positively progressive ASEAN by ensuring that the human rights declaration that it shall adopt guarantees the full promotion and protection of rights of all Southeast Asians at all times, regardless of sex, race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and gender identity among others. Need for a legitimate and credible Declaration in the Southeast Asian Region For a declaration to be considered as legitimate and credible, the drafting process should be meaningful, inclusive and participatory. ASEAN and its member states must ensure that the Declaration has a strong human rights language, one that raises the bar on human rights promotion and protection and shall paves the way to a sound and effective human rights system in the region. Crafting such a Declaration can be AICHRs unique contribution to ASEANs vision of creating a region of lasting peace, security and stability, sustained economic growth, shared prosperity and social progress (ASEAN Charter Preamble). The pressing need for human rights-based approach to development in ASEAN Fifteen years have passed since the ASEAN pledged its determination and commitment to bringing [this] ASEAN Vision for the Year 2020 into reality. To be meaningful, sustainable, and equitable, development must be beneficial to and participated by all peoples and sectors. AICHR as the overarching human rights institution must ensure that the ASEAN vision of a stable, prosperous and highly competitive ASEAN region is fulfilled without compromising the fundamental rights and freedoms of its people. The people must be at the center of all policies and programs of ASEAN. As the Philippines and other Member-states move toward the establishment of an ASEAN community by 2015, ASEAN member states and the ASEAN human rights bodies have the primary obligation to ensure that the AHRD that will be adopted possesses the resolute conviction and sincere initiative to promote and protect human rights and fundamental freedoms of the peoples of ASEAN. The Philwomen on ASEAN sees the potential of AICHR to be the conscience and voice of legitimacy and social justice in the region leading in the standard-setting and progressive interpretation of human rights in the region. Therefore, ASEAN must seriously take on human rights-related issues of the peoples of Southeast Asia and transform AICHR as an independent human rights body in the region; and this begins in adopting an ASEAN human rights declaration that reflects the voice and concerns of its people and ensures the fundamental rights and freedoms of the peoples of ASEAN.
Position paper prepared by Philwomen on ASEAN on the ASEAN Human Rights Declaration

Principles that must be borne in mind in adopting the AHRD The Philwomen on ASEAN believes that having these principles in mind shall ensure that the AHRD is at par with the widely accepted international human rights standards and shall be responsive to human rights issues and situations of peoples in the region. Philwomen on ASEAN urges the ASEAN member states to be guided by the following principles: non-discrimination and intersectionality; full promotion, protection and fulfillment of HR and fundamental freedoms; and transparency and accountability. 1. Non-discrimination and intersectionality The Universal Declaration of Human Rights (UDHR) establishes the principles of universality and non-discrimination as the standard of human rights by stating that all human beings are born free and equal in dignity and rights. Women may suffer from discrimination directed against them as women, and they may at the same time suffer from discrimination based on grounds such as race, ethnic or religious identity, disability, age, class, caste or other factors. Such discrimination may affect groups of women primarily, or to a different degree or in different ways than men (CEDAW GR 25).1 1.1 In finalizing the ASEAN Human Rights Declaration, ASEAN member states must complement and reinforce international human rights standards. Member states are urged to ensure that universal human rights standards and principles shape the process of the AHRD, making the adoption of a credible ASEAN human rights instrument extremely significant and timely.2 1.2 The principles of non-discrimination and intersectionality should guide the interpretation and application of the said human rights standards and norms in the AHRD. Sex and sexual orientation and gender identity have been expressly recognized as a ground for which discrimination must be prohibited and abolished. The need to explicitly mention the grounds or distinctions that exacerbate the discrimination and marginalization of many groups is imperative. 2. Full promotion, protection and fulfillment of human rights and fundamental freedoms Promotion is implied to mean both de jure and de facto promotion of human rights and fundamental freedoms. Promotion necessitates express and proactive measures such as inter alia, pronouncement of human rights and fundamental freedoms and denunciation of human rights violations in the declarations, conventions, agreements, policies and other undertakings of the different bodies and mechanisms of ASEAN, and the ASEAN as a whole.
1

CEDAW GR 25 provides for temporary special measures to address multiple discrimination against women, States parties may need to take specific temporary special measures to eliminate such multiple forms of discrimination against women and its compounded negative impact on them. (CEDAW GR 25, paragraph 12, http://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025%20%28English %29.pdf
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Statement of the UN High Commissioner for Human Rights on the ASEAN Human Rights Declaration, 11 May 2012, accessible at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12142&LangID=E Position paper prepared by Philwomen on ASEAN on the ASEAN Human Rights Declaration

The duty to protect requires laws and other measures to prevent violations of human rights by state and non-state actors and to provide redress for victims of those violations. To fulfill the right means to take active steps to put in place institutions and procedures including the allocation of resources to enable people to enjoy the right.3 ASEAN member states must also act with due diligence and uphold their responsibility to respect and implement all human rights and fundamental freedoms, specifically womens human rights. 2.1 For the AHRD to have real, distinct, and positive impact in the region, it must adhere to the principle of full promotion, protection and fulfillment of human rights and fundamental freedoms anchored on substantive equality. The AHRD must ensure that marginalized groups, including women and people with diverse sexual orientation and gender identity are not only given the opportunity and access to this opportunity, but that they are provided with enabling conditions to access these rights and to achieve equality of results. Consistent with the standard of substantive equality in rights, AHRD must recognize that patterns of disadvantage and oppression exist in society4 and as such, must provide protections for women victim-survivors of violence. In the same vein, the declaration must recognize the importance of womens sexual health and rights, alongside reproductive rights. 2.2 The AHRD must take into account that the position of marginalized groups such as women will not be improved as long as the underlying causes of discrimination against them, and of their inequality, are not effectively addressed. The lives of the women, lesbians, gays, bisexual and transgender (LGBT) persons and marginalized groups must be considered in a contextual way, and measures should be adopted towards real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns.5 2.3 The AHRD must include access to justice as translation of AICHRs mandate to promote and protect the human rights and fundamental freedoms of peoples of ASEAN. Access to justice serves to provide redress, remedies and other support services for those whose rights have been violated and in the process, have been deprived of enjoyment of human rights and fundamental freedoms. 2.4 Human rights systems at the national and regional levels have complementary and distinct contributions to advancing human rights. The AHRD as a framework of human rights cooperation in the region must strengthen ASEAN Human Rights Bodies capacity to effectively implement legal frameworks and actively contribute towards the continuing advancement of universal human rights by member states and within ASEAN and its various bodies. The creation of a strong, independent and effective regional human rights system in the ASEAN would create a necessary conducive environment for such fulfillment of state obligations. 3. Transparency and accountability
3 4

UNFPA, The Human Rights Based Approach http://www.unfpa.org/rights/approaches.htm The principle of substantive equality forms part of the Canadian charter, see http://www.ccppcj.ca/e/rights/rightscharter.shtml . Substantive equality is recognized as the norm in Canadian law. 5 CEDAW GR 25, paragraph 10 Position paper prepared by Philwomen on ASEAN on the ASEAN Human Rights Declaration

The principles of transparency and accountability invoke the state obligations of the member states of ASEAN to facilitate open, transparent and consultative processes with stakeholders. This shall pave the way to an informed and meaningful participation of the ASEAN peoples, especially the marginalized groups in the processes of ASEAN. ASEAN is duty-bound to be transparent in its functioning and processes. Transparency necessitates peoples access to information which is key to meaningful dialogue and consultation. Access to information is vital in enhancing public awareness of human rights among peoples of ASEAN6 and is likewise a necessary precondition for meaningful civil society participation. Transparency and accountability shall pave the way to effective integration of human rights standards in the functioning and work of the ASEAN bodies and mechanisms. 3.1 In adopting the AHRD, ASEAN, through AICHR, must recognize the value of holding meaningful consultations. In raising the bar with the ASEAN human rights declaration, AICHR must ensure that not only the content, but including its processes adhere to human rights standards and principles. 3.2 AICHR is urged to ensure accountability and transparency of the drafting process of the ASEAN Human Rights Declaration. AICHR must open the drafting process to the public, especially to women and civil society. Facilitate informed, meaningful and substantive participation of women and civil society in the drafting and finalization of the declaration. The AICHR is encouraged to take due consideration of, in the view of adopting, inputs and recommendations from womens rights groups and civil society in the final declaration. Involving ASEAN peoples in shaping and building the human rights system within the region would make ASEAN a pioneering regional body in human rights promotion and protection across the globe. It is imperative that ASEAN adopts a human rights declaration that, at the minimum, adheres to and integrates the features and principles outlined above. The Philwomen on ASEAN calls all Member-States of the ASEAN to re-evaluate and reflect on what has been done and achieved, and enable real, meaningful, transparent, accountable and participatory processes in the establishment of an ASEAN human rights system. We in the Philwomen on ASEAN expect NO less. Women and peoples in Southeast Asia deserve NO less.

AICHR TOR para 4.3 Position paper prepared by Philwomen on ASEAN on the ASEAN Human Rights Declaration